In NYPD spying, a Yippie legal battle echoes again

By CHRIS HAWLEY, Associated Press
| 11:36 p.m.Nov. 16, 2011

In this Oct. 21, 2011 photo, Joel Sucher goes through a file of documents related to secret New York Police Department program to monitor ethnic groups, student organizations and mosques, at his office in Hastings-on-Hudson, N.Y. (AP Photo/Chris Hawley)
— AP

In this Oct. 21, 2011 photo, Joel Sucher goes through a file of documents related to secret New York Police Department program to monitor ethnic groups, student organizations and mosques, at his office in Hastings-on-Hudson, N.Y. (AP Photo/Chris Hawley)
/ AP

In this Oct. 21, 2011 photo, Joel Sucher goes through a file of documents related to secret New York Police Department program to monitor ethnic groups, student organizations and mosques, at his office in Hastings-on-Hudson, N.Y. (AP Photo/Chris Hawley)— AP

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In this Oct. 21, 2011 photo, Joel Sucher goes through a file of documents related to secret New York Police Department program to monitor ethnic groups, student organizations and mosques, at his office in Hastings-on-Hudson, N.Y. (AP Photo/Chris Hawley)
/ AP

NEW YORK 
Barbara Handschu had tried to remove her name from the agreement that is her legacy.

More than a quarter century ago, after New York's police were caught spying on Americans who were exercising their right to free speech, she and others filed suit to stop it. The outcome was an agreement to place limits on surveillance - the Handschu rules.

But then, in the wake of Sept. 11, 2001, police said they needed more flexibility to protect the city. When the judge agreed to weaken the rules, Barbara Handschu tried unsuccessfully to strip her name from the guidelines.

Now, she sees the fruit of the weakened Handschu rules: the New York Police Department's secret surveillance program targeting Muslims, detailed in a months-long Associated Press investigation. And she finds echoes of an earlier time in reports of police infiltrating student groups, of detectives inventing excuses to snoop in people's homes.

"It's not that different than what happened back in the `60s, except that somebody's being targeted because of ethnicity and before we were targeted because of political belief," Handschu says. "I mean, this is worse. This is racial profiling."

The AP stories revealed that that over the last decade, the NYPD built a wide-ranging program to map and monitor Muslim communities, recording everything from where they pray to the restaurants they eat in. Without evidence of wrongdoing, officers have infiltrated student groups, eavesdropped on people and documented what they heard in daily reports.

The revelations have brought attention to the 40-year-old lawsuit filed by Handschu, "Steal This Book" author Abbie Hoffman and a motley assortment of Yippies, hippies, anarchists, computer geeks and Black Panthers. In justifying the surveillance, Police Commissioner Ray Kelly has repeatedly cited the rules that emerged from the Handschu case as proof that police are acting lawfully; civil rights advocates, in turn, have pointed to the fate of the Handschu rules as a prime example of how privacy rights have crumbled in the wake of the 9/11 attacks.

Handschu's story begins in the late 1960s, when anti-war protests swept through New York and the NYPD's intelligence arm began compiling detailed reports on activists.

The police file on Joel Sucher, a former film student at New York University, includes a list of the demonstrators at an Oct. 15, 1971 rally and the messages on their placards. "The rich set the bail, the poor go to jail," said one sign. No detail was considered irrelevant.

"Joel Sucher of the Pacific Street Film Collective was operating a 1968 Mustang," one page notes.

"I loved that car," Sucher recalls, 40 years later.

But other surveillance was much more menacing, and after the killing of protesters at Kent State University activists became increasingly worried about their safety.

In May 1971, Handschu - who was then a civil rights lawyer - sued the NYPD along with Hoffman, Sucher and members of the War Resisters League, the Gay Liberation Front, Computer People for Peace, the Black Panther Party, and other groups.

Hoffman, who was already famous as one of the "Chicago Seven" protesters arrested during the 1968 Democratic Convention, joined the lawsuit representing the Youth International Party, or Yippies. He was about to become a bestselling author with a counterculture how-to guide, "Steal this Book."

Together they argued the NYPD had created a landscape of intimidation and fear: groups infiltrated, families harassed, careers threatened.

Steven Tullberg, a law student at Columbia University, said he was baffled when the New York Bar Association's Committee on Character and Fitness questioned him in February 1971 about his membership in the Coalition for an Anti-Imperialist Movement - a group he had never heard of. The allegation was leaked from his secret NYPD file, the lawsuit alleged.

"I was stunned," says Tullberg, now living in Maryland. "You're getting on with your life, and then you get hit by something like this."

The leftists argued that police surveillance was so oppressive that it was threatening free speech.

One NYPD informant joined Veterans and Reservists Against the War in Vietnam, known as V&R, and began urging group members to break the law during demonstrations. Detectives visited the homes of two members and warned one that he should drop out of the group.

The infiltration "created such fear among the members of V&R, and so chilled their interest in the exercise of their rights of free expression and association, that V&R disbanded as a group shortly thereafter," the Handschu lawsuit alleged.

"They had so much going on, so much surveillance of us," says Keith Lampe, a Korean war veteran and one of the group's organizers.

In 1985 the police and plaintiffs reached a settlement: The NYPD agreed to a set of surveillance rules and oversight by a three-member panel. In return, Handschu and the others dropped their lawsuit.

"We thought we had accomplished something," Handschu said. "Everybody felt like it was a good thing we had been able to do."

The Handschu Guidelines, as the rules were known, barred police from starting a surveillance file purely because of the religion or political leanings of a person or group. It also required detectives to have "specific information" about a future crime and barred them from keeping notes on political or religious activities.

The lawsuit was declared closed. The court files were packed into boxes and sent to a vault deep inside a former mine in Lee's Summit, Mo.

Then came the attacks on the World Trade Center. The NYPD's new head of intelligence, a former CIA official named David Cohen, worried that the Handschu Guidelines were holding back the city's police. One day after the first anniversary of the attacks, Cohen asked Judge Charles Haight to loosen the Handschu rules.

"The counterproductive restrictions imposed on the NYPD by the Handschu Guidelines in this changed world hamper our efforts every day," he wrote.

He proposed rules similar to those used by the FBI, and the judge agreed.

The changes did away with the three-member panel. Under the new rules, known as the Modified Handschu Guidelines, Cohen can act alone to authorize investigations for a year at a time. He can also authorize undercover operations for four months at a time.

While the original rules called for "specific information" that a crime was about to be committed, the revised rules say only that facts should "reasonably indicate" a future crime.

Handschu, Sucher and the other plaintiffs were shocked.

"It's all been watered away," Handschu said. She wrote a letter to the judge, asking that her name be taken off the rules, but he said no.

In defending the secret program to monitor Muslims the police commissioner has repeatedly cited the modified rules as proof that the NYPD was within its bounds.

"By operating within the framework of the modified consent decree, we ensure that our investigations comport with the U.S. Constitution," Kelly told a city council committee last month. "The protection of civil liberties is as important to the Police Department as the protection of the city itself."

Handschu and Sucher disagree.

"Things are probably worse than they were 40 years ago," Sucher said. "They're cops. They're not going to change their ways."

As the years ticked by, the original Handschu plaintiffs went on to start careers, raise families, grow old.

Barbara Hanschu became a divorce lawyer. Joel Sucher made a movie about NYPD surveillance with fellow plaintiff Steven Fischler, and they went on to become successful documentary filmmakers. Michael Zumoff of Computer People for Peace became a software developer.

Hoffman, the clown prince of anti-war activists, became a fugitive from drug charges and spent seven years on the lam in the 1970s. He committed suicide in 1989, downing a handful of barbiturate pills and liquor.

But the Handschu case lives on.

The plaintiffs' longtime lawyers have done battle with the NYPD over police videotaping of protesters in 2004 and 2005. And on Oct. 3 Jethro Eisenstein - the lawyer who co-wrote the original class-action complaint in 1971 - filed another motion with Haight, the judge who has handled the case from the beginning. It cites the AP investigation and demands that the NYPD open its files regarding the surveillance of Muslims in order to determine if they violate the Modified Hanschu Guidelines.

The plaintiffs, meanwhile, say they worry the NYPD is broadening its surveillance beyond counterterrorism. Sucher says he's concerned about reports of the so-called "Hipster Cop" who wears plainclothes at Occupy Wall Street protests, and of pictures showing police videotaping the demonstrators.

"I've seen this go full circle," Sucher said, as he sat in a cramped back room of his office beside boxes filled with his FBI and police files. "There was this outcry, there was this anger at what the NYPD was doing."